Select Committee on Modernisation of the House of Commons First Report


TIMETABLING OF GOVERNMENT BILLS

Conclusion:

The efficient working of the House is dependent on a degree of tolerance and forbearance by the majority towards Opposition and minority opinion. The present Sessional Order, brought in contrary to the expressed principled opposition of the Opposition and minorities, has denied the House its central role of properly examining Government legislation. We are concerned that if the majority does not permit proper scrutiny of its bills the relevance of Parliament to the citizen will continue to decline.

RECOMMENDATION:

The Government should revert to the use of Standing Orders 82 and 83 which provide for both a Business Committee and an allocation of time to bills where it finds that delay in the scrutiny of bills by the House is unreasonable.

1. The Government shortly proposes to re-introduce the current Sessional Orders for the programming of Government bills. Sessional orders to this effect were first introduced to cover the 2000-01 session. The Modernisation Select Committee reviewed their application in April 2001 and made recommendations that were incorporated in the revised orders which have had effect for the past two Parliamentary sessions.

2. It was argued that they would be more flexible that existing Standing Orders 82 and 83. They would permit, it was claimed, proper examination of bills within a reasonable timeframe whilst retaining the Opposition's essential ability to effectively scrutinise, amend and oppose that which they judge to be wrong. Have the Sessional Orders achieved that objective?

3. Most bills are not hugely controversial and secure Parliamentary passage by a largely consensual process. That can perhaps best be illustrated by the fact that in the 57 years from 1946 to 1997 only 67 bills were guillotined. Under the present Government in the 6 years from 3rd June 1997 until 21st October 2003, 94 bills have been subjected to a guillotine of one sort or another. In the early days of this Government a cross party consensus was indicated by the Opposition business managers signalling consent by actually signing the guillotine motion. This was in a sense the formalising of the traditional agreements reached by the 'usual channels' (see below). The practice broke down.

4. The Modernisation Select Committee has endeavoured to mediate a set of sessional orders to meet the perceived deficiencies of the traditional arrangements and which would secure the broad support of the Opposition parties. Not withstanding this the Government has systematically guillotined almost every bill. The failure to secure cross party support by the way in which they have operated the Sessional Orders has ensured that Opposition parties routinely oppose the Government's guillotine motion as a matter of principle. As the Orders prevent debate on the guillotine and as they are moved immediately after 2nd Reading it is difficult for the House to discern the rationale behind the timetable. It is obviously also impossible for the House to argue why a timetable might not meet the objective of proper scrutiny. This has had the unintentional consequence of placing a greater burden of scrutiny on the House of Lords.

5. The term Guillotine is a colloquial expression for an allocation of time motion. The purpose of such a motion is to provide that one or more stages of a Bill be disposed of either by a fixed date, or by a fixed number of sittings (either of the House, or a Committee, or both). The dilemma which gives rise to the Guillotine motion is described in Erskine May:

"Governments have been confronted with the choice, unless special powers are taken, of cutting down their normal programme to an undesirable extent, or of prolonging the sittings of Parliament, or else of acknowledging the impotence of the majority of the House in the face of the resistance of the minority. In such circumstances resort is had sooner or later to the most drastic method of curtailing debate known to procedure ... [Guillotine Motions] may be regarded as the extreme limit to which procedure goes in affirming the rights of the majority at the expense of the minorities of the House, and it cannot be denied that they are capable of being used in such a way as to upset the balance, generally so carefully preserved, between the claims of business, and the rights of debate." (May, Parliamentary Practice, 22nd ed, 1997, pp 410-11)

6. Generally an approximate timetable for Government legislation was agreed informally and without publicity through the usual channels, in other words by the party leaders and the Whips. A new form, as proposed in the 1997/98 Session by the Modernisation Committee and approved by the House of Commons, of a Programme Motion could be regarded as a formalisation of such consensual agreement (or, in effect, an 'agreed guillotine'). Occasionally agreement proved impossible, and so in order to ensure the passage of legislation within a realistic time, the Government introduced a guillotine motion. Each guillotine motion was specific, and devised by the Government for the Bill (or Bills) to which it is to be applied. Over the years, there have been various changes in the procedure involved, but the guillotine motion nowadays provides usually that a Bill be reported from the Standing Committee (or read a third time, etc) by a certain date. The motion sets out in detail some or all of the provisions which are to be made for further proceedings on the Bill, and under SO No 83, the Speaker is required to put any question necessary to dispose of an allocation of time motion not more than three hours after the debate on the motion started.

7. If a Bill before a Standing Committee is the subject of an allocation of time order, SO No 120 (Business Sub-Committees) applies, and a detailed timetable is recommended to the Standing Committee by the Business Sub-Committee.

8. If a Bill is not before a Standing Committee, some or all of the details of the timetable may either be prescribed in the allocation of time order itself, or left to the Business Committee to recommend.

Business Committee

9. This Committee, set up under SO No 82, consists of the Chairman of Ways and Means (the Deputy Speaker) who acts as Chairman, and no more than eight MPs nominated by the Speaker in respect of each Bill, (the quorum is four). The function of the Committee is to divide the Bill into various parts and allot to each part such time as it considers appropriate. In the House, the question on the motion to consider the Business Committee's Report has to be put forthwith (in other words, no debate is allowed); if that question is agreed to, the question which immediately follows, "That this House doth agree with the Committee in their resolution", must also be put forthwith.

History

The guillotine was first employed in substantially its present way on the Criminal Law Amendment (Ireland) Bill of 1887, when the motion to allocate time to the Bill was agreed to by 245 votes to 93 in the early hours of Saturday 11 June 1887. The innovation, itself an extension of procedures first employed in 1881 and 1882, was described by the Minister, Mr William Smith, as:

"absolutely essential in the interests of the honour and dignity of Parliament and the duties which are imposed upon the Members of the House of Commons ... we have arrived at the fourth month of the Session and we have practically done nothing except to consider the measure now before the House ... the whole course of legislation has been stopped." (HC Deb Vol 315, c 1596, 10 June 1887)

10. The Irish Bill had occupied the House for some 35 days previously, some sittings extending through the night. Gladstone referred to the proposal as "a further abridgment of Parliamentary liberty", but did not lead his party into the lobbies against it. (He had been Prime Minister in 1881 when a simple prototype form of guillotine had been used to bring an end to the committee stage of the Protection of Person and Property (Ireland) Bill.)

11. Sir William Harcourt, MP, however, adduced hypothetical examples from the future to express his fears about the guillotine:

"A Liberal Government might introduce a Bill for the Disestablishment of the Church, and they might reasonably say "all that can be said for and against this Bill has been said already, and we shall take the Third Reading of it this day week". Great constitutional measures might be pushed through in a fortnight. ... All our safeguards are now swept away."

12. May's Parliamentary Practice list 36 Bills as having been subject to a guillotine in one form or another in the period 1881-1921, 14 in the period 1921-1945, and 30 in the period 1945-1975. The Guillotine was not lightly used, and is not applied without reason. The usual justification is to counter delaying tactics (actual or threatened) amounting, in the government's view, to obstruction.

13. The modern system of Standing Committees was stabilised only in 1921. Before that date a much larger number of Bills was considered in Committee of the Whole House. After 1921 pressure on the time of the House was substantially relieved. Since 1945 the form in which guillotine orders were usually passed became more complex. Standing Orders were established providing for the Business Committee, consisting then of the Chairman's Panel and not more than five other Members nominated by the Speaker, to divide the Bill into portions within the allotment of days laid down in the guillotine motion.

14. In 1967 a new Standing Order, No 43A (in 1971 renumbered as No 44), provided for a Government motion to report a Bill on or before a specified day if (a) the Speaker was informed that a voluntary time-table could not be agreed, or (b) such an agreement had been broken. Such a motion could be debated only for two hours. When it was carried, the Business Committee had the task of recommending the numbers of days to be allotted, and the division of the Bill. This procedure was in fact employed on three occasions, in each case under provision (a) above. This version of the guillotine, known as the Crossman guillotine after the Richard Crossman, then Leader of the House, was first introduced as a Sessional Order just to deal with the 1967 Finance Bill, although its provisions were not actually employed in connection with that Bill. When this was made a Standing Order it was not welcomed by the then Opposition. John Boyd-Carpenter said,

"This proposal ... provides for a permanent arrangement for imposing the guillotine on any Bill at the cost of two hours debate ... if the Government want to use the guillotine they can do it now, but it costs them a day's debate". (HC Deb Vol 754, c 292, 14 November 1967)

15. In its Report (HC 538 1970-71) on the process of legislation, the Select Committee on Procedure recommended inter alia: that the Chairman's Panel be excluded from the Business Committee and SO No 44 be repealed; that the Business Committee should be chaired by the Chairman of Ways and Means, and should consist of five Members who would take an active part in the proceedings on the Bill, plus three senior MPs nominated by the Speaker; and that debates on guillotine motions should be limited to three hours.

16. These recommendations were accepted by the Government and implemented on 16 November 1971 (HC Deb Vol 826, c 349ff).

Current Practice: S.O. 82 & 83

17. The guillotine or motion to allocate time may be debated for a maximum of three hours: the detailed allotment of time for further debate may be either prescribed in the motion itself or decided by the Business Committee. The current Standing Orders governing this are Nos. 82 and 83. For proceedings in Standing Committee, the guillotine motion normally provides that the Bill be reported on or before a future date. Another SO (No 120) then operates, providing for a Business Sub-Committee of the Standing Committee, consisting of the Chairman (or one of the Chairmen) and seven other Members of the Committee, nominated by the Speaker. This Sub-Committee decides on the number of sittings to be held, and upon the detailed allocation of time.

18. Recently, and notably at the stage of consideration of Lords' amendments, motions have provided that the amount of time prescribed for further debate should include that on the timetable motion itself—an incentive to spend less than the full time discussing the motion.

19. The use of the guillotine since 1945 is listed below: it will be seen that such motions are by no means uncommon. Session 1988-89 saw a record number of Bills guillotined (ten), which in turn overtook the record set in the previous session, 1987-88 (six). Before this the largest number of Bills guillotined in any one Session had been five, in 1961-62 and again in 1975-76 and 1977-78. The possibility that the Government may resort to a guillotine motion must regularly be taken into account by any Opposition in considering its tactics in relation to any particular Bill.

20. In April 1985 the Select Committee on Procedure published a report (HC 49 1984-85) recommending that timetables should be set up at the start of Standing Committee debates on all controversial bills. This report was debated on 27 February 1986, but rejected by the House by a majority of 65. John Biffen (the then Leader of the House) maintained that on balance Governments would be advantaged by the Procedure Committee's proposal and stressed:

"Every Government is tomorrow's possible Opposition".

21. In Session 1989-90 the Government decided to introduce an allocation of time motion immediately after the second reading of the Human Fertilisation and Embryology Bill [HL]. The motion prescribed a timetable for committee stage (split between a Committee of the Whole House and Standing Committee) and remaining stages: it was agreed on a division after half an hour's debate. The principles of the bill had been much debated on the floor of the House in previous sessions. It was argued that the bill dealt with important matters of conscience and that a detailed structure for debate was the best way for the House to make orderly decisions.

22. Informal discussions on the timetable for Bills were the rule, but they were agreed by the Whips and were not publicised. The lack of transparency worked against a wider understanding of the negotiations between Government and Opposition in progressing government legislation. Typical negotiations over a Finance Bill have been described by a former Chancellor, Selwyn Lloyd,

"(In 1961) I said that it was a short, simple little Bill which we ought to be able to get through in not more than seven days. My opposite number said that it was a long, complicated and confused measure which would need ten days in Committee. We agree to see if we could do it in eight, and in fact we did it in nine." (HC Deb Vol 745, c 614, 19 April 1967)

23. In the period 1946 to18th February 1997 67 Bills were Guillotined. In the period 3rd June 1997 to 21st October 2003 94 bills were Guillotined.

Timetabling of Government Bills

24. Before 1998, there were two ways in which the House of Commons could timetable bills:

  • Allocation of time (commonly called "guillotine") motions—a practice which dated back to 1887, and which had been used by governments, with varying frequency, when voluntary agreements could not be reached, to speed up or secure the passage of a bill, and to prevent what they saw as obstructive tactics.[38]
  • The "usual channels"—voluntary, informal, unpublished, and ultimately unenforceable, agreements between the government and opposition Whips.

Programme Motions

25. In July 1997, the Select Committee on the Modernisation of the House of Commons added a third option to this list by proposing the introduction of the "programme motion".

26. In July 1997, the Modernisation Committee published a report (HC 190 1997-98) on the Legislative Process, putting forward cross-party recommendations on reform of the process. One area the Committee considered was the arrangements for programming of legislation:

"We have explored the possibility of using arrangements for programming legislation which are more formal than the usual channels but more flexible than the guillotine." (HC 190, 1997-98, p. xxii)

27. For a trial period, during the 1997-98 Session, certain bills were selected, through the usual channels, to be subject to a 'programming motion'. The first programme motion was put down on 13 January 1998 in respect of the Scotland Bill and was hailed as the 'first ever all party programme motion'[39]

28. The Committee had recommended that a programme motion should be debated for a maximum of 45 minutes. In the case of the Scotland Bill, the motion was considered formally, therefore there was no debate. [HC Deb 13 January 1998 c254]

The Report stated that the amendable programme motion should include:

  • committee option to be the followed
  • the date by which the bill should be reported from committee
  • the amount of time proposed for report stage and third reading
  • in defined circumstances, provisions for carrying-over to a subsequent session

29. In its second report of 1999-2000, Programming of Legislation and Timing of Votes HC 589, the Select Committee on the Modernisation of the House of Commons examined the effect of its previous recommendations as well as looking at the timing of votes. Motions for new sessional orders on programme motions were debated in the House on 7 November 2000 and passed. Their provisions were applied to almost all government bills introduced in the 2000-01 Session.

30. The Committee reviewed the situation in April 2001. Its first report of 2000-01, Programming of Legislation, noted that "in practice every programme motion in this session has faced opposition, irrespective of content". Its recommendations included:

  • an indication in advance of second reading of the date by which the government proposed a bill to be reported from its standing committee stage.
  • Programming sub-committees to have the power to recommend an alternative 'out date' from committee and the amount of time the House should spend on the remaining stages of the bill.

31. These recommendations were incorporated in the revised sessional orders debated and passed by the House on 28th June 2001. The revised orders gave more power to programming committees and programming sub-committees but limited proceedings in these committees to two hours. They also reduced the amount of time normally available for debate on programme motions in the House. These orders had effect until the end of the 2001-02 session but were renewed for the present on 29th October 2002.

32. Mrs Angela Browning and Richard Shepherd tabled a minority memorandum as an appendix to the majority Report:

"As many feared, the Sessional Order has increased the power of the Executive over the timetable of bills in Standing Committee and denied the House the ability to cover shortfalls on consideration.

Every bill this session has been guillotined. Few enquiries if any are made of the Official Opposition or opposition parties as to what time may be necessary to properly discharge the duty of scrutiny. This may perhaps best be illustrated by reference to the Criminal Justice and Police Bill. The out time from Standing Committee, which had been set immediately after Second Reading and without any reference to the weight of issues raised at Second Reading, simply proved inadequate. When the guillotine fell at 7 pm in Standing Committee the Committee had only reached Clause 90 out of 132. There were amendments yet to be considered, including Government amendments. Those experienced members who chaired the Committee were clear that there had been no filibustering. The whole of Part III, from Clause 49 to Clause 69, had also not been considered. The Guillotine arrangements for Report Stage were also so tight that clauses and amendments which had not been considered in Standing Committee were not considered at Report."

As Mr Simon Hughes said on the floor of the House:

'Debate on the early parts of the Bill was often guillotined and we did not fully consider the rest, so it is true to say that we had not properly considered many measures, including significant clauses.' (Hansard col 750)

As the House knows, the Government tabled a Motion stating that:

'the Bill shall be deemed to have been reported to the House, as amended by the Committee and as if those Clauses and Schedules the consideration of which has not been completed by the Committee has been ordered to stand part of the Bill with the outstanding Amendments which stood on the Order Paper in the name of Mr Charles Clarke.'

The Speaker advised the House that there is no precedent for such a Motion (Hansard col 728).

The Shadow Leader of the House said at col 738:

'If we are to accept tonight that a Committee and all its outstanding business, which I shall mention in a moment, are deemed to have been considered and concluded, why do we not deem Second Reading debates to have been completed? Why do we not deem Report stages to have been completed? Why do we not deem ourselves to be elsewhere, and allow some robots to sit on these Benches and legislate on behalf of the people of this country?'

We do not believe that it is in the interest of the House and of its standing among those whom we are elected by to pass a motion that is an untruth. Nor is it proper to consign to the Lords an unconsidered bill."

33. The memorandum went on to say:

"We reject the view that it improves the 'terms of trade' for everyone. It is clearly to the disadvantage of the Official Opposition, to the expressed disadvantage of backbenchers and minorities and to the balance between the majority and the minority within the House. It has strengthened the Government's control over procedures with no discernible concession to the Opposition. It is true that the Government will get greater certainty for this legislative timetable. The proposition that Opposition parties and backbenchers will get greater opportunities to debate and vote on the issues of most concern to them simply has not been borne out by experience in this Session of the experiment of systematic guillotining of all bills. Similarly the evidence of this Session is that the House has not scrutinised legislation better and we would refer back to the Government Motion of 12 March, to which we have previously made reference, as indicative of this failure."

Current Procedures for Programme Orders

34. Notice of programme motions must be given of programme motions before second reading, and they are moved immediately after second reading. They are not usually debatable, but those which are debatable may be amended. If a supplementary motion is made to reduce the amount of time allocated to any stage of a bill, or if it is not in accordance with a recommendation of the programming committee or sub-committee, then it is debatable for up to 45 minutes.

35. Business covered by a programme order may continue for the time allocated regardless of standing orders requiring sittings to be brought to an end at certain times (i.e. it is treated as 'exempted business' for the time allocated).

36. When the time allocated expires, only certain questions may be put, as specified in the sessional orders. In broad terms they are:

  • the question under discussion;
  • questions on amendments moved or motions made by a Minister or
  • on any amendment selected by the Chair for separate division;
  • other questions necessary to dispose of the business.

37. When a programme order covers proceedings which take place in the House itself (committee of the whole House, consideration (report stage) or third reading), a programming committee is appointed, consisting of the Chairman of Ways and Means and up to eight other members nominated by the Speaker. The function of the committee is to divide the bill into various parts and allot to each part such time as it considers appropriate. Proceedings in the programming committee are limited to two hours. The House may debate the programming committee's resolution for up to 45 minutes and, if it is agreed to, it has effect as if it were included in the programme order. The sessional order providing for the appointment of a programming committee is usually disapplied.

38. Where a programme order covers proceedings on a bill in standing committee, a programming sub-committee of the standing committee is appointed. This consists of one of the Chairmen of the committee plus seven members of the standing committee, nominated by the Speaker. Like the programming committee in the House, the programming sub-committee divides the bill up into parts and allots time to the consideration of each part in the committee. The standing committee must approve these arrangements.

39. The programming sub-committee may propose a change to the date by which the bill is to be reported to the House (i.e. the date on which the standing committee is to complete its consideration of the Bill). This must be agreed to by the standing committee. The Government must then arrange for a Motion to be debated in the House within five days, which either gives effect to the proposal, confirms the date set in the original Programme Order for the Bill, or otherwise alters or supplements the provisions of the original Programme Motion.

40. The Programming Sub-committee may also make recommendations about the programming of the Consideration and Third Reading of the Bill. If they are agreed to by the standing committee, then the Government must again set down a supplemental Programme Motion as for a change to the date for the end of the standing committee stage.


38   A general description of the practice of the guillotine, together with a list of the use of guillotine and programme motions since 1945, is contained in HCIO Factsheet P10 - Guillotine and Timetabling Motions.  Back

39   Cabinet Office Press Notice 13 January 1998 Back


 
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